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Case Won on Appeal (to Public)

IN some ways, it was a modest decision. A year ago, the United States Supreme Court ruled that a city in Connecticut could use the power of eminent domain to make room for private development. The decision simply applied existing law and deferred to the judgments of local officials.

But the outcome was a revolt.

The decision provoked outrage from Democrats and Republicans, liberals and libertarians, and everyone betwixt and between. Dozens of state legislatures considered bills to protect private property from government seizure, and many passed new legislation; Justice John Paul Stevens, the author of the decision, issued something like an apology; a campaign was started to use eminent domain to seize the home of another justice, David H. Souter; and, on Wednesday, a ruling from the Ohio Supreme Court adopted the analysis of the dissenters in last year’s decision to reject an effort to oust the residents of a Cincinnati suburb.

Sometimes, Supreme Court cases have a way of highlighting issues that had been absent from the national agenda, and the cases can provoke reactions that have a far greater impact than the ruling itself.

“I always tell my students,” said Douglas Laycock, a law professor at the University of Texas, “that one of the best things you can do is lose a case in the Supreme Court.”

Dana Berliner, a lawyer with the Institute for Justice, the libertarian legal group that represented the homeowners in both the Connecticut and Ohio cases, said the United States Supreme Court decision, Kelo v. New London, gave rise to “a tidal wave of outrage.”

“The decision brought to light this incredible rift between what lawyers and cities thought was the law and what the American people thought was the law,” Ms. Berliner said. “This is certainly the situation of losing the battle and winning the war.”

In many ways, then, the decision by the Supreme Court to hear a case can be as important as the ultimate ruling. “The role of the courts in shaping public opinion is their ability to elevate issues on the public agenda,” said Nathaniel Persily, a law professor at the University of Pennsylvania.

Issues like school prayer, flag burning, school desegregation, gay rights and abortion rights all gained prominence on the political landscape because of court decisions. The cases that tend to provoke the biggest popular reaction are those in which justices seem to be out of touch with ordinary people, said Michael J. Klarman, a law professor at the University of Virginia.

Photo

BACKLASH Jose Gonzales was among the protesters at the New Jersey State House opposing the use of eminent domain spurred by a United States Supreme Court decision.Credit
Mel Evans/Associated Press

“Almost all of the instances of backlash,” Professor Klarman said, “are conservative, populist reactions to decisions that seem elitist.”

Kelo, which concerned, after all, the sanctity of the home, was a prime example. “You got a very strong, visceral response,” said Richard Epstein, a law professor at the University of Chicago, “because this is something on which everyone is a constitutional expert.”

Yet Kelo was in one sense a modest, rather than activist, decision; the majority did little more that say it hesitated to second-guess urban planning decisions. It did not endorse New London’s actions but merely ruled that the Constitution did not forbid them, and it invited state courts and legislatures to fashion different rules.

“It seems almost meek,” Professor Klarman said. “People who are critical of Kelo are people who want judicial activism. They are the same people who criticize judicial activism in abortion or same-sex marriage cases.”

Some argue that the Kelo decision has provoked an overreaction. They point, for instance, to a California ballot initiative called the “Protect Our Homes Act.” Promoted as a reaction to Kelo, it would bar not only the condemnation of property for economic development but also require compensation for some regulations that affect property values.

“There is no doubt that Kelo has inspired a level of reaction that denies power that a rational community would like a city council to have,” said Douglas W. Kmiec, a law professor at Pepperdine University who opposes Kelo but expresses doubts about the initiative.

In most unpopular decisions, the Supreme Court typically has the last word, barring a constitutional amendment. But that was not true in Kelo, or in a few other cases. In 1986, for instance, the court held that the Air Force could bar officers from wearing skullcaps. The next year, Congress passed a law allowing members of the armed services to wear “items of religious apparel” so long as they are “neat and conservative.”

Similarly, in 1972, the Supreme Court ruled that the First Amendment did not protect reporters from grand jury subpoenas seeking their confidential sources. Partly as a result, legislatures and courts created shield laws in almost every state, though there remains little protection in most federal cases.

Ms. Berliner, of the Institute for Justice, sounded practically giddy on Friday as she reflected on the year since Kelo. “They won that particular case,” she said of her adversaries, “and they lost the entire country.”